Law and Media Round Up – 18 January 2016

18012016

The new legal term is in full swing and our weekly Law and Media Round Ups begin again today. We have included some material published since our last Round Up on 21 December 2015. Please let us know whether there is anything else we should add.

Last month’s announcement that there would be no more criminal prosecutions against journalists over phone hacking may been premature, as News Group now faces yet another legal battle after allegations that phone hacking was “endemic” when she was editor of The Sun.

Last week, the High Court heard that 16 civil claims by alleged phone-hacking victims are in the offing, with a possible 25 to follow. Five of the initial 16 are against The Sun. The claimants are seeking disclosure of records from the Sun, similar to those produced by News UK for News Of The World. If five of the claimants are successful, lawyers representing victims say a potential 60 cases could follow.

Glenn Mulcaire, the private investigator whose arrest led to the closure of the NOTWhas substantiated these claims, claiming that at least four stories derived from hacking phone messages also appeared in The Sun between 2004 and 2006. The company has said the new claims are “unsubstantiated” and that if they proceed it will “defend them vigorously”. News UK is reported to have already spent more than £300m in the fallout from phone hacking at the NOTW.

In other news, the press has been blamed for creating a “misinformed media storm” after a court case ruled that a man whose employer had accessed his personal messages had not had his rights violated. The case centred on a Romanian man who asked the human rights court to rule that his right to a private life had not been upheld.

Many British media outlets portrayed the case as giving employers the right to snoop on employee’s Facebook, Twitter and Gmail messages. The Council of Europe released a statement showing this to be incorrect. The Panopticon blog discusses the case here.

It has been announced that the fraud case being brought by Lalit Modi against Chris Cairns will not be proceeding due to a lack of new evidence. This follows Mr Cairns’ acquittal on perjury and perverting the course of justice charges in November 2015.

Impress, the truly independent press regulator, is set to announce the identities of its first “clients”, the publishers that have agreed to be regulated by it. At present the Guardian, Independent and Financial Times have not signed up to regulation by either IPSO or Impress.

Privacy International has a review of the right to privacy at the UN in 2015, arguing that the international body has substantially increased their capacity to monitor states’ compliance with privacy obligations.

English PEN are working with the International Press Institute to campaign for an end to criminal defamation in Europe. They argue the law is routinely abused to inhibit critical media coverage, and constitutes a threat to free speech.

A Plaid Cymru candidate for the National Assemblyhas been ordered to pay over £120,000 in legal costs to a rival politician. Neil McEvoy, who leads the Plaid Cymru group in Cardiff council, faces the bill after pulling out of a libel action he brought against Labour councillor Michael Michael.

Schillings suggests that January should be a time to “detox” your social media profile, suggesting using the month to protect your reputation and privacy with their helpful tips.

Data Protection and Data Privacy

The GDPR looks set to change the regulatory environment for personal information around the world. Optanon blog highlights the top ten issues here.

The Field Fisher Privacy Law blog also looks at changes due to be implemented under the GDPR, particularly looking at the concepts of ‘privacy by design’ and ‘privacy by default’.

The Information Commissioner has reaffirmed the need for stronger sentencing powers for people convicted of stealing personal data. Currently, courts can issue unlimited fines for the offence, but not custodial sentences.

The Field Fisher Privacy and Information Law Blog argues that you shouldn’t rely on consent for most data transfers. Organisations should re-evaluate their data export strategy to take this into account.

Germany’s highest court has declared that Facebook’s “friend finder”, which encourages users to market the social media network to their contacts, is unlawful. The feature constituted advertising harassment, violating German laws on data protection and unfair trade practices.

Statements in Open Court and Apologies

There were no statements in open court this week.

Newspapers Journalism and Regulation

The Timeshas been censured by IPSO after publishing an “inaccurate” story claiming the Organisation for Security and Co-operation in Europe Parliamentary Assembly was operating as a “personal fiefdom”. The Times said the evidence for the piece came from a confidential source, which it was obliged to protect under Clause 12 of the Editors’ Code.

An exclusive from The Sun on Gary Lineker’s divorce has been revealed to be based on poor information. Wayne Lineker has released a series of text messages with a Sun journalist, demonstrated that the paper disregarded his wishes in publishing the story.

Last week in the Courts

As we have, mentioned, on 13, 14 and 15 January 2016 Mann J heard a number of applications in phone hacking litigation against News Group Newspapers, Various v NGN. The applications will continue today.

On 11 January 2016 Master Gordon-Saker handed down judgment in the case of BNM v Mirror Group [2016] EWHC B1 (Costs). He dismissed the argument that recoverable success fees and ATE premiums in media cases were a breach of section 6 of the Human Rights Act 1998.

On 15 January 2016 Sir David Eady heard an application in the case of McGrath v Bedford. Judgment was reserved.

On the same day Sir David Eady handed down judgment in the case of Otuo v Morley [2016] EWHC 46 (QB)). An application for permission to amend was refused.

Cricketer Chris Gayle has begun defamation proceedings against Fairfax Media, after a report claimed he exposed himself to a woman working for the West Indies team during last year’s World Cup in Sydney. He has hired Sydney media lawyer Mark O’Brien to take legal action.

A wealthy Queensland family is suing an opponent of their airport project, claiming they have had their reputations damaged by her comments. Ms Pascoe, who has been outspoken in her criticism of the project, is said to have claimed her life had been under threat and her house ransacked by people acting on behalf of the Wagner family.

There have been calls to change Australian defamation laws, with many arguing that the current law cannot deal with the explosion of social media publications.

Canada

Internet companies and telcos are the guardians of personal privacy in this connected age. The Ontario Supreme Court has released an important decision in R. v. Rogers & Telus, 2016 ONSC 70, which clear guidance on when and how they can obtain telco customer information through “tower dumps”.

India

It has been a difficult year for free speech in India, with eight deaths, 30 attacks, 48 cases of defamation, 14 of sedition. The Hoot discusses the developments here.

A Supreme Court ruling means that banks will now be obliged to reveal who is defaulting on loans, giving the media greater opportunity to scrutinise these institutions.

Ireland

A student who allegedly swore at a security guard has been awarded €7,500 damages for defamation. Jodie Hayes (22) told the Circuit Civil Court she was at River Island store in Dublin when she was asked to leave the shop by security guard Wayne Mitchell, who accused her of swearing at him a few weeks earlier. Hayes, denied calling Mitchell the names and sued security company Vision Security Group Ltd.

Malaysia

Prime Minister Najib Razak has argued that his position as prime minister does not eliminate his right to sue individuals for defamation. He argued that critics such as Dr Ling have the right to criticise, but this did not include the liberty to exceed legal limits and tarnish the target’s reputation.

Northern Ireland

Sinn Fein’s Paul Flanagan is to pay libel damages to an Ulster Unionist MP for falsely suggesting he had harassed and shot people. Flanagan also apologised for a defamatory tweet about rival Tom Elliott’s conduct during his previous career as a soldier.

Controversial taxpayer-funded insurance which indemnified members of the NI Assembly who were responsible for libel has been ended. MLAs are already protected by absolute privilege while speaking during Assembly proceedings, meaning that they can only be sued for remarks made outside of the chamber.

South Korea

A court has ordered a prominent professor to pay nine former “comfort women” substantial damages after his book caused them mental distress. The book has drawn criticism for taking Japan’s side on the issue of women forced into wartime brothels during World War Two.

United States

Lawyers for Ghislaine Maxwell, who has been accused of providing a teenage “sex slave” for billionaire Jeffrey Epstein, have argued that she, has the right to call the woman accusing her a liar. Maxwell’s lawyers are pushing to dismiss a defamation lawsuit brought against the English media heiress by Virginia Roberts — the alleged teen “sex slave” of Epstein.

A judge has delayed the deposition of Bill Cosby’s wife in a defamation lawsuit against her husband, to allow her lawyers time to appeal an earlier ruling in the case. The deposition is part of a defamation suit brought by seven women who have accused Cosby of sexual misconduct.

Sexual abuse lawyer John Manly has revealed that if Cosby, who is worth an estimated $350 million, is found liable, it could wreak havoc on his finances.

A state legislator has filed a libel lawsuit against the founder of an advocacy organisation created to expose problems in nursing homes.

Anonymity and Defamation Secrecy, Law and Society, G. Martin, R. Scott Bray, M. Kumar, eds, Routledge, UK, 2015, Sydney Law School Research Paper No. 16/04
David Rolph, University of Sydney – Faculty of Law